TRETO

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

DANIEL TRETO, )

)

Petitioner, )

)

v. ) No. 1:22-cv-00840-JMS-TAB

)

UNITED STATES OF AMERICA, )

)

Respondent. )

Order Denying Motion for Relief Pursuant to 28 U.S.C. § 2255

For the reasons explained in this Order, Daniel Treto's motion for relief pursuant to 28

U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court

finds that a certificate of appealability should not issue.

I. The § 2255 Motion

A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal

prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343

(1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 "upon

the ground that the sentence was imposed in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to impose such sentence, or that the sentence was

in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C.

§ 2255(a). "Relief under this statute is available only in extraordinary situations, such as an error

of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which

results in a complete miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79 (7th

Cir. 2013) (citing Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); Barnickel v. United

States, 113 F.3d 704, 705 (7th Cir. 1997)).

II. Facts and Procedural Background

A. Criminal Proceedings

On March 30, 2022, represented by Ms. Gwendolyn Beitz, Mr. Treto pled guilty to 6 counts

of child pornography/sexual exploitation of a child related to 6 different victims. United States v.

Treto, No. 1:20-cr-00177-JMS-DML, dkt. 75 (Crim. Dkt.). The Guidelines sentence he faced was

170 years, with a statutory minimum of 15 years. Crim. Dkt. 63 at 1-2. The United States agreed

to a plea deal in which it would ask for no more than 365 months, but sentencing was left to the

Court's discretion. Dkt. 55. During the combined change of plea and sentencing hearing, there was

some discussion of Mr. Treto having difficulty "communicating" and the hearing was stopped

several times for him to clarify things with Ms. Beitz.

For instance:

Q: Are you suffering from any mental health issues today that you

believe interferes with your ability to understand what is happening?

A. No.

Q: Okay. You are hesitating. Do you want to explain why?

(Off-the-record discussion.)

A: After speaking to my counsel, I – I can move forward and say I

do not have any issues.

Crim. Dkt. 87 at 6-7. There were several other instances where the Court went off the record so he

could consult with Ms. Beitz as he was questioned regarding the plea agreement and the rights he

was waiving.

During his allocution, Mr. Treto stated:

My counsel has advised me to keep my remarks and apology short,

as I have difficulties with conveying myself while staying on track.

. . .

I struggle to communicate with my own lawyer or the people who

could have impacted my case, such as the prosecuting team. So

knowing that I have spent years and years attempting to speak

coherently, one who doesn't would feel more hopeless. . . .

Your honor, before coming into federal custody I was in the process

of getting behavioral and mental therapy. It has been unfortunate

that I never got to seek it while detained, as it wasn't available. . . .

While I have many issues that may have helped mitigate and explain

my own justifiable rationale, I was advised it wasn't a good idea,

even more so, as it would have extended sentencing even further.

Id. at 47, 49-50.

During her sentencing argument, Ms. Beitz stated:

[He] does struggle with communicating effectively what it is that –

what it is he is thinking, what it is that he is feeling. He does the best

he can to do that, but he is correct, that over the last two and a half

years that we have had extensive conversations, extensive meetings,

and I can certainly represent to the Court that he tries. . . .

[H]e was genuinely trying to explain what he understood was

happening with the computer, what was happening with the

communications, and he did his very best for several hours to do

that. . . . But often, sometimes there was – he was just unable to fully

find the words to be able to explain his position.

Id. at 52-53.

The presentencing report said, with regard to Mr. Treto's mental and emotional health:

Mr. Treto stated he has never participated in mental health

counseling. At age 14, he would attend voluntary groups at The

Anderson Center; however, he only went "to interact with people."

As an adult, the defendant reported, "I contained my own mental

health." He stated he has diagnosed himself with depression,

dyslexia, and maybe schizophrenia.

He stated he feels depressed because of the secondary trauma he has

experienced through hearing other people's stories throughout his

life. He feels as if he may have schizophrenia because he

experiences visual and auditory hallucinations and has throughout

his entire life. He indicated he sees people, animals, shadows, and

hears things. He stated he "leaves it alone." Mr. Treto stated he has

never "wanted" to have a mental health evaluation. He is not

interested in mental health treatment and does not believe in taking

medications.

Crim. Dkt. 72.

The presentence investigation report also related disturbing details of Mr. Treto's

interactions with the minor victims, who were between 10-15 years of age. Id. at 6-11. This

included encouraging a victim to engage in bestiality, and another to engage in self-harm, and

threatening the victims with violence. Id. Mr. Treto described his communications with the victims

as "edginess." Id. at 6.

Ms. Beitz did not submit a sentencing memorandum. At the sentencing hearing, she

essentially argued (1) Mr. Treto accepted responsibility by cooperating with authorities and

pleading guilty; (2) his relatively young age and expressed desire to seek sex offender treatment

meant there was a high likelihood he could change and be released before he was too old. She

argued for a sentence of 20 years. Crim. Dkt. 87 at 57. The government argued for 30 years. Id. at

59. Ultimately, the Court imposed a 25-year sentence. Crim. Dkt. 81.

B. 2255 Proceedings

Less than a month after sentencing, Mr. Treto filed this action under § 2255. Dkt. 1. In

part, Mr. Treto stated under oath that Ms. Beitz "held an opinion shared to my family and friends

that she believed there was at the very least one [mental health issue] which has seemed apparent,

Asperger's disorder, on the autism spectrum disorder." Id. at 5. He claimed Ms. Beitz provided

ineffective assistance by not investigating whether he in fact was on the autism spectrum and to

present such evidence as a sentencing mitigator.

The Court appointed counsel to represent Mr. Treto after concluding that resolution of his

claims would require an evidentiary hearing. Dkt. 20. The Court also provided funds for and

assisted in arranging for Mr. Treto to be evaluated by a psychologist, Dr. David Gavisk. Dkt. 27.

Dr. Gavisk has completed a report following that evaluation. Dkt. 48-1. The report acknowledges

that Mr. Treto "has no previous diagnosis of autism spectrum disorder." Id. at 6. But, Dr. Gavisk

concluded, "[a] diagnosis of Autism is indicated. Autism has affected most aspects of Daniel's

life, throughout his life." Id. at 9 (emphasis in original). The overall assessment of Mr. Treto states:

Concerns are noted with his ability to inhibit impulsive responses,

adjust to changes in routine or task demands, monitor social

behavior, and initiate problem solving or activity. Daniel's ability to

modulate emotions, sustain working memory, plan and organize

problem-solving approaches, attend to task-oriented output, and

organize environment and materials is not described as problematic.

Id. at 13. The report described Mr. Treto's autism as "moderate" and that he could have "mild to

moderate interference with everyday social interactions." Id. at 21. The report does not clearly

indicate whether Mr. Treto's autism would or should have been obvious to other persons interacting

with him.

The Court held a hearing in this matter on December 9, 2025.1 Dkt. 45. Mr. Treto did not

call Dr. Gavisk to testify; nonetheless, the government did not object to the post-hearing

submission of Dr. Gavisk's report to the Court. Dkt. 46 at 5. Mr. Treto's brother, Carlos, testified

that Ms. Beitz had told his family at some point that she suspected Mr. Treto was "on the

spectrum." Id. at 9. After that comment was made, Carlos conducted research about autism and

believed that Mr. Treto had communication difficulties that would be consistent with autism. Id.

at 10-11.

The only other witness to testify was Ms. Beitz. She has worked as an assistant federal

defender since 2012, with 80 to 85 percent of her caseload involving sex offenses. Id. at 14-15.

Although she has had some experience with persons with autism, both professionally and in her

personal life, she has no specialized training in psychology or in recognizing symptoms of autism.

1 Due to illness, the undersigned was unable to attend the hearing in person. At the outset of the hearing,

the parties consented to the undersigned presiding by Zoom. Dkt. 46 at 3.

Id. at 15-16. She testified that Mr. Treto could be "awkward" or have difficulty "read[ing] a room,"

and that she sometimes had to explain certain things to him repeatedly. Id. at 22. Still, he "was

always appropriate in court" and "more relaxed" during his meetings with Ms. Beitz. Id. She did

not suspect that he might have autism, and she did not attempt to have him evaluated regarding his

alleged communication difficulties. Id. at 22-23, 37.

Ms. Beitz agreed that Mr. Treto had expressed to her in a letter that he had trouble

communicating sometimes, because he would go on "tangents with excessive detail or

clarification" and end up frustrating members of the prosecution team or causing difficulties with

Ms. Beitz. Id. at 27-29. Mr. Treto did not always give direct answers to investigators' questions,

but Ms. Beitz believed that was "pretty common, especially after somebody has just been arrested

and they're still kind of in shock." Id. at 30. She also noted that despite some communication

difficulties at times, "I had observed that he could communicate directly with very goal-oriented

behavior at times." Id. at 75.

Ms. Beitz also related that Mr. Treto had expressed a clear desire not to be tested for

anything that might result in mental health therapy or treatment of some kind. Id. at 37, 42. He did,

however, express an openness to seeking mental health treatment during the sentencing hearing,

and also to his brother Carlos. Id. at 42.

Ms. Beitz related that on a prior occasion, she had had a client evaluated for autism and

presented that diagnosis to a court at sentencing, but it did not have "a great impact . . . ." Id. at 48.

Specifically with respect to Mr. Treto, Ms. Beitz believed that even if he had been evaluated and

diagnosed with autism, and evidence of such could have been presented at sentencing, she would

have had concerns with doing so, especially after reviewing his disturbing communications with

the victims. Id. at 49, 62. She explained:

[L]et's say I have a diagnosis that he is autistic, that is a double-

edged sword because it could be -- when the Court is looking at

whether or not this could ever happen again and whether or not this

person is a danger to the community, I don't want to present that

person as somebody who doesn't have the ability to have empathy

or somebody that would be later future -- is more future -- in the

future, likely to have the same reaction if a child or somebody asks

for -- you know, begs for help, begs for mercy, begs to not have to

do something. I would not want the Court to view this person as,

because they have this autism, it's an excuse, therefore, more likely

to do it again.

Id. at 49-50. She also never observed any indication that Mr. Treto was not competent to

understand the proceedings, and that he fully understood the plea agreement. Id. at 53-54, 57. She

also did not recall ever telling Mr. Treto's family that she suspected he was "on the spectrum." Id.

at 60. Furthermore, Ms. Beitz believed "it would have absolutely backfired" if she had attempted

to argue autism as a mitigator in Mr. Treto's case, particularly given her experience with the

Assistant U.S. Attorney, Kristina Korobov. Id. at 61-62.

At the conclusion of the hearing, the Court gave the parties the opportunity to file proposed

findings and conclusions, 30 days after completion of the transcript. Both Mr. Treto and the

government have done so. Dkts. 48, 49.

III. Discussion

A § 2255 movant claiming ineffective assistance bears the burden of showing (1) that

counsel's performance fell below objective standards for reasonably effective representation and

(2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688–94

(1984); Resnick v. United States, 7 F.4th 611, 619 (7th Cir. 2021). If a petitioner cannot establish

one of the Strickland prongs, the Court need not consider the other. Groves v. United States, 755

F.3d 588, 591 (7th Cir. 2014). To satisfy the first prong of the Strickland test, the petitioner must

direct the Court to specific acts or omissions of his counsel. Wyatt v. United States, 574 F.3d 455,

458 (7th Cir. 2009). The Court must then consider whether in light of all of the circumstances

counsel's performance was outside the wide range of professionally competent assistance. Id. On

the prejudice prong, a petitioner "must show that but for counsel's errors, there is a reasonable

probability that the result would have been different." Perrone v. United States, 889 F.3d 898, 908

(7th Cir. 2018) (citation modified).

"The Strickland protections apply not only in criminal trials but also at sentencing, where

the defendant's counsel is expected to offer a case to mitigate punishment." Laux v. Zatecky, 890

F.3d 666, 674 (7th Cir. 2018). Thus, "defense counsel has an 'obligation to conduct a thorough

investigation of the defendant's background' in advance of such proceedings, with an eye toward

evidence that speaks in the client's favor." Id. (quoting Williams v. Taylor, 529 U.S. 362, 396

(2000)). In assessing whether trial counsel performed ineffectively at sentencing, the court must

"evaluate the totality of the available mitigation evidence in deciding whether counsel was

ineffective." Id. (cleaned up). "The Sixth Amendment does not require counsel to investigate every

conceivable line of mitigation evidence—it requires counsel to make reasonable decisions about

which matters to pursue." Id. at 675.

"Where it is apparent from evidence concerning the crime itself, from conversation with

the defendant, or from other readily available sources of information, that the defendant has some

mental or other condition that would likely qualify as a mitigating factor, the failure to investigate

will be ineffective assistance." Hall v. Washington, 106 F.3d 742, 749-50 (7th Cir. 1997). In other

words, counsel has a duty to make reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary. "In any ineffectiveness case, a particular decision not

to investigate must be directly assessed for reasonableness in all the circumstances, applying a

heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691.

The Court notes that in McMullen v. Dalton, 83 F.4th 634 (7th Cir. 2023), the Seventh

Circuit reversed this Court's denial of habeas corpus relief to a state petitioner under 28 U.S.C.

§ 2254. The defendant's presentence report noted that he personally said his mental health was

"ok" and had never been diagnosed with a mental illness but had concerns about depression. The

PSR also mentioned "anger control" issues and trouble with alcohol. Defendant's attorney did not

conduct any investigation into his mental health and he received a maximum 50-year sentence for

drug charges. In his state post-conviction relief proceeding, there was evidence presented that the

defendant had in fact been diagnosed with mental illnesses as a juvenile. State post-conviction

relief was denied, which was upheld by the Indiana Court of Appeals, and this Court denied § 2254

relief. The Seventh Circuit, however, held there was the possibility defendant was prejudiced by

defense counsel's failure to investigate his mental health, despite defendant personally denying to

the probation officer that he had ever been diagnosed with mental health problems. The Seventh

Circuit remanded to this Court to hold a hearing "to consider evidence and argument as to whether

Lewis had any strategic reasons for the limits of his investigation into McMullen's mental health

and background and the presentation of mitigating circumstances." McMullen, 83 F.4th at 648.2

Here, the Court has held such a hearing regarding Mr. Treto's claims. Even though Mr.

Treto now does have an autism diagnosis, which the government does not dispute, the Court

concludes that Ms. Beitz made a conscious and reasonable strategic decision not to explore before

sentencing whether Mr. Treto was autistic. There is no evidence that Mr. Treto had a pre-existing

diagnosis that Ms. Beitz overlooked. The Court further finds Ms. Beitz to be credible when she

repeatedly related that she did not observe anything in Mr. Treto that might have warranted further

investigation to rule out an autism diagnosis. Nothing in Dr. Gavisk's report calls her credibility

2 On remand, the parties entered into an agreement that the petitioner be provided with a new sentencing

hearing in state court. McMullen v. Dalton et al., No. 2:19-cv-00356-JRS-MJD, dkt. 41.

into question on this point; the report itself describes Mr. Treto's autism-related communication

problems as "mild to moderate." Dkt. 48-1 at 21.

Furthermore, Ms. Beitz provided solid reasoning as to why such a diagnosis might or likely

would not have been helpful to Mr. Treto at sentencing. She is highly experienced in representing

clients in federal court who have been charged with sex offenses. She related that Mr. Treto, at

least to her, was consistently highly resistant to undergoing any type of mental health examination.

She also explained how any argument she might have made regarding autism and Mr. Treto's

difficulties in communication would be wholly contrary to his behavior in this case, where he

clearly, coercively, and disturbingly was able to communicate online with numerous minors.

Indeed, such an argument could "backfire," in that an autism diagnosis could highlight a lack of

empathy. Ms. Beitz had particular experience with AUSA Korobov and how she would have

addressed and attacked any argument that autism could have partially explained Mr. Treto's

offenses or warranted a reduced sentence. And, Ms. Beitz has had prior experience in attempting

to present autism as a mitigator at sentencing, without success. Giving "a heavy measure of

deference" to Ms. Beitz's judgments, as Strickland requires, the Court concludes she made a

reasonable strategic decision in declining to pursue or investigate the possibility that Mr. Treto

was autistic prior to sentencing.3

3 Given this finding, the Court need not evaluate whether Mr. Treto would have been prejudiced if Ms.

Beitz had performed deficiently. To show prejudice by a defense attorney's deficient performance in not

presenting mitigating evidence at sentencing, a 2255 petitioner "must present new evidence that 'alter[s] the

sentencing profile presented to the sentencing judge.'" Johnson v. United States, 2016 WL 1394232, at *6

(S.D. Ill. Apr. 8, 2016), aff'd, 708 F. App'x 883 (7th Cir. 2018) (quoting Strickland v. Washington, 466 U.S.

668, 700 (1984)). Given that Mr. Treto eventually received a sentence very far below the Guidelines, and

the heinousness of Mr. Treto's crimes, it is highly unlikely that an autism diagnosis would have significantly

altered the sentencing profile presented to the Court.

IV. Denial of Certificate of Appealability

A habeas petitioner does not have the absolute right to appeal a district court's denial of his

habeas petition. Rather, he must first request a certificate of appealability. See Miller—El v.

Cockrell, 537 U.S. 322, 335 (2003); Peterson v. Douma, 751 F.3d 524, 528 (7th Cir.

2014). Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing

§ 2255 Proceedings, and 28 U.S.C. § 2253(c), the Court finds that Mr. Treto has failed to show

that reasonable jurists would find "it debatable whether the petition states a valid claim of the

denial of a constitutional right" and "debatable whether [this Court] was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a certificate of

appealability.

V. Conclusion

For the reasons explained in this Order, Mr. Treto is not entitled to relief on his § 2255

motion, and the Court denies a certificate of appealability. There was no ineffective assistance of

counsel because Ms. Beitz did not perform deficiently in representing Mr. Treto. Accordingly, his

motion for relief pursuant to § 2255 is DENIED, and this action is dismissed with

prejudice. Judgment consistent with this Order shall now issue, and the Clerk shall docket a copy

of this Order in No. 1:20-cr-00177-JMS-DML. The motion to vacate, Crim. Dkt. [85], shall also

be terminated in the underlying criminal action.

IT IS SO ORDERED.

Date: 2/17/2026 lame Monat Sta

(Hon. Jane Magnus-Stinson, Judge

United States District Court

Southern District of Indiana

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